from the fine-everything's-fine dept

I love HBO's Game Of Thrones. I hate everything we have to write about it, however, because the stories are typically dumb in the usual ways that stories are dumb here at Techdirt. From HBO happily playing the evil villain in protecting the show's IP in the most overly-protectionist manner possible, to HBO screaming about the show being heavily pirated while everyone else comments about how good a thing that actually is, all the way up to the occasional overt hacking that occurs, where episodes from the show leak early, everybody freaks out, and then HBO and GoT go on to rake in tons of eyeballs and money anyway. One of these hacks just occurred, as you may know, resulting in a ransom not being paid to the hackers, who were then eventually arrested. While episode four of the current season did indeed get leaked, it wasn't the hackers who leaked it, but someone at an HBO distribution partner. So HBO screams about hacks while someone with in its own house is leaking episodes.

Trouble continues for HBO as another episode of the popular Game of Thrones series has just leaked online, days ahead of the official premiere. Copies of the sixth episode of the current season, titled ‘Death is the Enemy,’ are currently circulating on various streaming portals, direct download, and torrent sites.

At the moment it’s not confirmed how the leak came about but some suggest that it was leaked by HBO itself in Spain. Several people have posted screenshots and videos that suggest it was made public by HBO unintentionally.

With no counter-narrative yet from HBO, which you'll recall loves to scream about hacks and piracy, the accidental leak from HBO is the only explanation on offer as of the time of this writing. And, look, mistakes like this happen. The point of this post isn't to point the finger and laugh at HBO for accidentally leaking an episode itself.

No, the point is that these leaks just don't matter. The show continues to rack up the same astounding viewership numbers, leaks and all. It's wildly successful. It has been spun off into board games and all manner of merchandise. It's to the point that nobody batted an eye when HBO refused to pay the hackers' ransom to not release the episodes early. There would be no point. Hell, when the first four episodes of season five of the show were leaked early, that season broke the show's viewership records.

So chill, HBO. Leaks from hackers, leaks from distributors, and leaks from your own offices aren't going to bring the piracy dragons to your doors to destroy your keep.

from the neat dept

So here's a bit of nice news. Yesterday EFF announced this year's Pioneer Award winners, and they included Chelsea Manning, Annie Game... and me. I'm humbled to win the award -- but especially to be included with Chelsea and Annie, both of whom have gone to amazing lengths, and often sacrificed tremendous amounts, to do what they believe in to help make the world a better place. I just write about stuff. If you read Techdirt, you probably know about Chelsea Manning already -- we've certainly written about her, what she's done for this country, and the travesty of the charges and punishment she faced. Frankly, it's a joke to put me in a list with Chelsea Manning. We don't belong in the same conversation, let alone getting the same award. As for Annie Game -- you might not know the name, but she's a force to be reckoned with as well. She runs IFEX, which is on the front lines around the globe -- especially in repressive authoritarian-led countries -- fighting to protect a press that has few legal protections and standing up for free expression and access to information in very real and tangible ways (and sometimes in dangerous environments). I aspire to do work that will someday put me on a level with the things both Chelsea and Annie have done -- but in the meantime, I'm happy to share this award with them.

If you have not been, the Pioneer Awards event is always a blast, so if you're in the area on September 14th, please consider coming out to the ceremony. Tickets help support EFF, and I think we all know just how much amazing work EFF has done over the years.

from the accelerated-disclosure dept

At the time, the documents leaked by NSA contractor Reality Winner -- showing Russian interference in the recent election -- didn't seem to be of much importance. They showed something that had long been suspected, but also showed the NSA performing the sort of surveillance no one really disapproves of. The documents were in the public's interest, but weren't necessarily of the "whistleblower" variety.

That aspect of the documents hasn't changed, but public interest in the unauthorized disclosure certainly has. In a post for Emptywheel, Marcy Wheeler takes on an NPR story about actions taken by electoral agencies as a result of the leak.

[S]usan Greenhalgh, who’s part of an election security group called Verified Voting, worried that authorities underreacted. She was monitoring developments in Durham County when she saw a news report that the problem pollbooks were supplied by a Florida company named VR Systems.

“My stomach just dropped,” says Greenhalgh.

She knew that in September, the FBI had warned Florida election officials that Russians had tried to hack one of their vendor’s computers. VR Systems was rumored to be that company.

Now, there's an investigation underway in North Carolina, linked directly to the documents leaked by Reality Winner. Josh Lawson, general counsel for the state's board of elections, said it first learned about the hacking from the Intercept's article.

Which makes you wonder when the federal government was going to get around to notifying affected state agencies. When local agencies are learning about Russian hacking from leaked documents rather than straight from the source, the downward flow of pertinent information seems to be more than a little broken.

Not that this news will do Winner any good as she heads to court. As noted by Ed Snowden earlier, and reaffirmed here by Marcy Wheeler, any positive outcomes resulting from leaked documents can't be raised by the defendant.

Last week, Magistrate Judge Brian Epps imposed a protection order in her case that prohibits her or her team from raising any information from a document the government deems to be classified, even if that document has been in the public record. That includes the document she leaked.

The protective order is typical for leak cases. Except in this case, it covers information akin to information that appeared in other outlets without eliciting a criminal prosecution. And more importantly, Winner could now point to an important benefit of her leak, if only she could point to the tie between her leak and this investigation in North Carolina.

With the protection order, she can’t.

This is generally how things go in espionage cases. This is what Snowden detractors ignore when they argue he should just return home and face a "fair trial." There are no fair trials in espionage cases. In Winner's case, the order is so broad it forbids her legal reps from discussing any classified document or any document they believe might be classified (or derived from classified documents), even if those documents have been leaked and published by journalistic entities.

The info in the leaked documents led to an investigation. This may excuse the leak in the minds of those whose first encounter with evidence of Russian hacking came from a site known for publishing leaks, rather than the federal government performing the surveillance that uncovered it. But this is of no use to Reality Winner, or any leaker in her position. No matter how much good may result from unauthorized disclosures, the government only cares about the authorization.

from the all-the-problems,-none-of-the-accountability dept

Palantir has made government surveillance big business. It's a multi-billion dollar company built mainly on government contracts. Its tech prowess and computing power have made it the go-to company for data harvesting and many of its most loyal customers are local law enforcement agencies.

In one case, files marked as sensitive by a Long Beach drug squad detective were still accessible by other officers who shouldn't have had access. Multiple emails to Palantir failed to resolve the issue. Making it worse was the fact the problem couldn't be contained in-house. When agencies sign up for Palantir services, they're given heavily-discounted rates if they allow their data to be shared with other law enforcement agencies. Detectives hoping to protect sensitive sources and undercover cops from outside access were finding out their employers had signed that option away in exchange for cheaper initial pricing.

That's just the beginning of Palantir problems uncovered by these public document requests:

In the documents our requests produced, police departments have also accused the company, backed by tech investor and Trump supporter Peter Thiel, of spiraling prices, hard-to-use software, opaque terms of service, and “failure to deliver products” (in the words of one email from the Long Beach police). Palantir might streamline some criminal investigations—but there’s a possibility that it comes at a high cost, for both the police forces themselves and the communities they serve.

These documents show how Palantir applies Silicon Valley’s playbook to domestic law enforcement. New users are welcomed with discounted hardware and federal grants, sharing their own data in return for access to others’. When enough jurisdictions join Palantir’s interconnected web of police departments, government agencies, and databases, the resulting data trove resembles a pay-to-access social network—a Facebook of crime that’s both invisible and largely unaccountable to the citizens whose behavior it tracks.

Palantir encourages the use of predictive policing. By analyzing data from past incidents and arrests, agencies are supposed to be able to identify "hot spots" where criminal activity is likely to occur and step up patrols in those areas. There are several problems with this approach, not the least of which is the latent encouragement of profiling by officers patrolling these areas, who are likely to view everyone they approach as a criminal suspect, rather than someone who just lives or works in a software-generated "hot spot."

But the problems go deeper than that with Palantir involved. Predictive policing is data-driven. But it is also a victim of circular logic. If predictive policing doesn't appear to be having much effect, the usual solution is to feed it more data. Palantir's predictive algorithms are particularly data-hungry. Officers patrolling hot spots are required to fill out heavily-detailed encounter reports, detailing everything they can about the person spoken to, as well as anything else observed in that area. This is all fed into Palantir's predictive policing software.

At this point, the gathering of data became so streamlined, law enforcement agencies have begun allowing Palantir to swallow up other law enforcement databases -- namely CLETS (California Law Enforcement Telecommunications Systems) -- and allow it to crunch idata into something actionable. Sure enough, Palantir's software has coughed up… something. But tips as bad as these should come from unvetted informants and questionable eyewitnesses, not multimillion dollar programs.

In February 2013, JRIC was tasked with tracking down Christopher Dorner, an ex-LAPD officer who had embarked on a series of shootings targeting law enforcement officers. The effort involved dozens of agencies across the state. “We used Palantir extensively to address that [and] were active 24/7 until he was caught or killed,” remembers Jackson. “We found that processing clues was a big challenge.”

In fact, on two separate occasions, police shot at trucks misidentified as belonging to Dorner, injuring three civilians.

A larger problem, at least in terms of personal privacy, is the potential for abuse. Smaller data silos meant unauthorized use/access of law enforcement databases could at least be somewhat mitigated by the limitations of the database itself. Now, with multiple agencies tied together through Palantir's data sharing (along with its swallowing of existing law enforcement databases), those wishing to abuse their access have a much larger dataset to dig through.

In the end, someone has to pay for all this data. And, man, will they ever. Obtained documents and interviews with officials show Palantir seduces law enforcement with low introductory prices before ratcheting up the fees once they have nowhere else to go.

According to LA County contracts, when JRIC committed to the full Palantir system in October 2011, the LASD paid around $122,000 each for 20 Palantir “cores”: packages of already-configured computer servers bundled with preinstalled software. That price was approximately $19,000 less per core than Palantir charged the federal government. According to paperwork for the pilot program, LASD received a “special discount because it [would] be the first in the LA basin to use this software.”

[...]

Palantir’s customers must rely on software that only the company itself can secure, upgrade, and maintain. Although the letter noted Palantir had not provided JRIC with any of its requested (but unspecified) metrics by spring 2016, the company is set to receive annual maintenance payments of nearly $2.5 million from the fusion center through the spring of 2019.

That's taxpayer money being fed to a single-source contractor whose end goal is to tie everyone to everyone else using steep discounts predicated on data sharing. And it appears to be drowning in data, with no customer able to point to positive, real-world changes that can be conclusively linked to Palantir's law enforcement software. But it's too late to do anything about it. In California, law enforcement agencies bought cheap and surrendered control. It's likely happening elsewhere in the nation, but the paper trail has yet to be exposed. Citizens, of course, are the ones paying for all of this, not only with their tax dollars but with their individuality, having been reduced to data points in a stream of alleged criminal activity held by a private party that's probably already imagining secondary markets for its law enforcement data stores.

from the dumb-argument-hall-of-fame dept

When last we checked in with former FCC Commissioner Harold Furchtgott-Roth, he was rather grotesquely using the Manchester bombing to try and launch a completely bizarre attack on net neutrality over at the Forbes op-ed pages. Furchtgott-Roth, who served as an FCC Commissioner from 1997 through 2001, now works at the Hudson Institute, which not-coincidentally takes money from large incumbent broadband providers. The Hill, Forbes and other similar outlets then publish not-so-objective "analysis" from such individuals without really disclosing the money or motives driving the rhetoric.

In his missive for hire last May just days after the Manchester attack, Furchtgott-Roth tried to argue that protecting net neutrality somehow aids and abets terrorism and murder:

"A sensible question is why civilized governments do not seek to deprive terrorists of unfettered access to the Internet...Sadly, here in America, limiting access to the Internet would be illegal under the euphemistic term “network neutrality,” the two-year-old experiment in federal regulation of the Internet...To its supporters, network neutrality is a bulwark of civilization. But network neutrality is also a shield for terrorists who seek to destroy civilization."

As we noted then, Furchtgott-Roth doesn't appear to have even the remotest understanding of how the internet or net neutrality works, and conflated the issue of net neutrality with his own deep-rooted desire to see greater government censorship of the internet. That lust for censorship runs so deep, Furchtgott-Roth envisioned a future where ISPs could compete with one another (as if that's a thing) by how heavily they censor internet content:

"Under network neutrality, broadband companies--such as AT&T, Charter, Comcast, Sprint, T-Mobile, and Verizon—are prohibited from discriminating against any lawful websites or content. There is no clear distinction between lawful and unlawful websites and content. The net result is a broadband company could and likely would be sued for blocking websites housing information about recruitment and organization for ISIS, Al Qaeda, the Ku Klux Klan, or other terrorist groups. It is also illegal to block content that instructs viewers on how to manufacture explosives such as nail bombs."

Again, that has nothing to do with net neutrality. Net neutrality encourages the internet as a level playing field free of the anti-competitive or editorial meddling of giant telecom conglomerates comfortable in uncompetitive markets. And while ISPs are banned from blocking legal websites under the rules, few ISPs have interest in outright blocking of content in the first place due to political and PR backlash. In other words, eliminating net neutrality would do nothing to expedite Furchtgott-Roth's vision of a filtered internet anyway. ISPs simply aren't interested, and individuals have every right to avoid or filter websites as they see fit.

The former FCC Commissioner turned think tank "expert" simply conflated two completely unrelated issues (either intentionally for effect or unintentionally out of confusion) to try to demonize popular net neutrality protections. Apparently undaunted by his previous run in with extreme myopia and insensitivity, Furchtgott-Roth has since published a second, horribly ill-timed screed against net neutrality over at Forbes, this time blaming net neutrality for the resurgence of neo-nazis and white supremacy:

"In many countries around the world, national governments block much content and decide which websites its citizens can access. In the United States, we should allow individuals, not the government, to make those decisions. Broadband companies, including those currently regulated by network neutrality rules, should be allowed to offer various filtered services and filtering technologies to allow individuals to avoid content that they would rather not see, or have their families see. Families that want to block Daily Stormer and its ilk from the Internet should be allowed to purchase such a service directly from any business, and not have the FCC tell them that such a service is unlawful in the name of network neutrality."

That's an even deeper layer of bullshit than Furchtgott-Roth's original treatise. There's absolutely nothing in the net neutrality rules preventing individuals from using any filtering technology they'd like at any time under something known as personal responsibility. At no point has the FCC ever indicated that families can't purchase any filtering or parental control service they want. This is a completely made up and bizarre claim, made with total insensitivity to the recent attacks in Charlottesville, all to try to demonize some basic, popular consumer protections for the open internet.

At this point it feels like Furchtgott-Roth is just sitting around waiting for tragedies so he can blame them on the pure evil that is net neutrality. It would be lovely if he would fucking stop that.

from the good-deals-on-cool-stuff dept

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Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

from the something-resembling-accountability dept

Earlier this year you might recall that lawmakers voted along party lines to kill consumer broadband privacy protections. The rules, which large ISPs whined incessantly about, were relatively basic; simply ensuring that ISPs couldn't collect or sell your personal data without being transparent about it and providing working opt out tools. The rules were only proposed after ISPs repeatedly showed they weren't able to self regulate on this front in the face of limited competition, from AT&T's plan to charge more for privacy, to Verizon getting busted for covertly modifying wireless packets to track users without consent.

After a massive lobbying push, the usual loyal ISP allies like Tennessee Rep. Marsha Blackburn rushed to help free these incumbent duopolists from the terror of accountability. In response, many of these lawmakers faced a naming and shaming campaign by consumer advocacy group Fight for the Future, which crowdsourced the funding of billboards erected in their home districts clearly highlighting how they took ISP campaign contributions in exchange for selling consumer privacy down river:

Of course many of those same lawmakers have, as instructed, now shifted their gaze toward supporting the FCC's plan to ignore the public and dismantle net neutrality protections. As a plan B, most of them are being prodded by ISPs to help craft a new net neutrality law. One that pretends to solve the problem, but will be written by industry lawyers to intentionally include so many loopholes as to be arguably useless. This cacophony of self-serving dysfunction again highlights how AT&T, Verizon, Comcast and Charter campaign contributions trump the public interest on a routinely grotesque scale.

Hoping to piggyback on its privacy campaign, Fight for the Future has now similarly-crowdfunded new billboards shaming lawmakers that have breathlessly supported killing popular net neutrality protections. Which politicians are shamed is being determined by a congressional scorecard, which tracks just how cozy politicians are with incumbent telecom duopolies. Needless to say, Marsha Blackburn again took top honors and is being featured again in the group's latest effort:

The group is hoping that this naming and shaming campaign will help shake these lawmakers' constituents out of their apparent slumber:

"Politicians need to learn that they can’t attack free speech on the Internet and expect to get away with it,” said Evan Greer, campaign director of Fight for the Future (pronouns: she/hers), “Voters from across the political spectrum all agree that they don’t want companies like Comcast and Verizon dictating what they can see and do online. No one is fooled by corrupt lawmakers’ attempts to push for bad legislation while they strip Internet users of protections at the FCC. Hundreds of people donated to make these billboards possible. When you come for the Internet, the Internet comes for you.”

The problem, as always, is that folks like Marsha Blackburn have been selling out their constituents for years and are consistently re-elected anyway. Blackburn was a major supporter of SOPA, and is the cornerstone of an AT&T stranglehold over Tennessee's state legislature that's so severe, AT&T lawyers are quite literally allowed to write protectionist state laws protecting the company from anything that even smells like competition. Tennessee is, not at all coincidentally, one of the least connected states in the union for just this reason.

Of course there's any number of reasons for why folks like Blackburn are immune to accountability efforts. Gerrymandering and voter suppression certainly plays a role. But so too does concerted disinformation campaigns that frame kissing Comcast's ass as a heroic quest for freedom, and important technology issues of interest to all (like oh, the internet fucking working) as somehow partisan. Still, you'd like to think that with enough elbow grease and repetition, even folks like Blackburn can't be permanently immune from something at least vaguely resembling accountability.

from the love-to-be-wrong-on-the-internet-all-the-time dept

Eugene Volokh (along with Public Citizen's Paul Levy) has made a cottage industry of sniffing out bogus/fraudulently-obtained court orders demanding the delisting of unflattering content. Much of this seemed to be the work of desperate reputation management "gurus," who had over-promised and under-delivered in the past. Abusing the DMCA process only goes so far. Sometimes you need to lie to judges to get things done.

Sometimes you just need to pretend you're the judge. Convicted sex offender Abraham Motamedi forged a court order awarding himself legal fees and the delisting of content indicating he was a convicted sex offender. When called on it, Motamedi claimed he had nothing to do with it while also claiming the order was legit. These two viewpoints cannot be resolved logically. If it was legit, Motamedi would have had to appear in court to obtain them. If it wasn't legit, then assertions otherwise won't suddenly make a nonexistent case appear on a Michigan court's docket.

Forgeries continue, as Eugene Volokh reports. A man who attempted to use a forged court order to vanish content from the internet appears to have doubled down.

In April, I mentioned two prosecutions for such forgeries, including a prosecution of one Garner Ted Aukerman, who was convicted of contempt of court based on a judge’s finding that he was responsible for “a fraudulent court order [that] has never been entered by [the] court”:

"Apparently Mr. Aukerman has taken [an] order setting the matter for hearing and deleted the middle section of that order in which he generated [in context, I think this means “inserted" -EV] the detail concerning the court’s findings and orders. A hearing was never held, those findings were never made and the order is completely fraudulent."

Perhaps no layperson understands the flow of legal documents quite like a vexatious pro se litigant. By "understand," I mean, has at least a passing familiarity with their general appearance and what they should contain. Still, even the most vexatious of litigants isn't going to be able to produce a fake court order targeting actual legal experts and get away with it.

Garner Aukerman apparently tried to muddle his judicial interlopment by trying to make the fake court order look like it was part of Aukerman's criminal prosecution. Aukerman's case has a sealed docket which makes it a little tougher to determine which of the several documents accompanying his takedown request doesn't belong. Unfortunately for Aukerman, his supposed delisting order confuses two legal issues in a way no real judge would.

The first part of the order provides for the sealing of criminal records after a certain amount of time has passed. This is legitimate. But the order goes on to demand the "sealing" of Volokh posts and posted documents about Aukerman's past bogus legal work, calling them "defamatory." Well, there are defamation cases and post-release criminal record expungement, but they aren't interchangeable and no judge is going to randomly declare some internet content to be defamatory for the hell of it while reminding a convict of his expungement rights.

Even if that part were struck, post-release expungement would only remove the government's official records pertaining to Aukerman's conviction. It has no power to demand the rest of internet participate in the expungement. There's no right to be forgotten law in the United States and, for better or worse, the internet tends to remember things long past the point the government itself has officially forgotten about them.

Volokh contacted the issuing court and discovered (to no one's surprise) the court hadn't actually issued this order. He also spoke to Aukerman, who claimed what he sent to Google was nothing more than a proposed order. Even if true, there's no point submitting a proposed order because no one's under any legal obligation to do anything until a judge approves it... unless the real point is to try to push one past Google's takedown review team and hope it doesn't notice the obvious fakery.

“According to data provided by the Department of Justice, the vast majority of individuals convicted of terrorism and terrorism-related offenses since 9/11 came here from outside of our country.”

But what data? That's what Wittes is seeking. As he pointed out in April, it appears the president generated this assertion completely out of firing synapses and airborne vibrations.

I'm going to be very blunt here: I not only believe that the White House made up "alternative facts" about the substance of this matter in a Presidential address to a Joint Session of Congress, I don't believe that the National Security Division of the Justice Department provided any data or analysis to the White House that could reasonably be read to support the President's claim. In other words, I believe the President was lying not merely about the underlying facts but about his own Justice Department. Or, in the alternative, I believe it's possible that the Office of the Attorney General may have supported the White House's claim. But I think it extraordinarily unlikely that the folks at NSD actually provided data in support of this presidential statement.

Other authors at Lawfare examined the claim in detail, finding that when people extradited to America to face charges were excluded from the count, the ratio of foreign-born terrorism convicts dropped to 18-21% of the total -- not anywhere near a "vast majority."

Beyond that, there's likely zero data available to support Trump's claim. Wittes notes the DOJ doesn't actually track where convicts are born, and certainly doesn't do so when foreigners are booted from the country by immigration enforcement, only to be dragged back to face criminal charges.

Wittes filed a FOIA request for the numbers the DOJ supposedly "provided" to the president. So far, he's heard nothing back. His requests have been acknowledged but no further processing has been done, not even a determination as to whether he'd qualify for a fee waiver. Now, he's suing [PDF].

Wittes refers to this as the "friendliest lawsuit ever," given that it's not being fired off in hopes of liberating documents the DOJ would rather not part with, but instead to give the DOJ an opportunity to state -- on the record -- that it has none of the information Trump claimed was handed over to him. It would give the DOJ a way to contradict the president's claims without looking like it's intentionally undermining the president's assertions. Considered from this angle, it might be the sort of lawsuit the DOJ might welcome -- although if it was truly interested in disputing the president's statement, it might have chosen to provide Wittes with a more substantive response, rather than wait until it became a problem for the judiciary.

from the rock-and-a-hard-place dept

So for years we've examined how executives at ESPN completely whiffed at seeing the cord cutting revolution coming, and personified the industry's denial that a massive market (r)evolution was taking place. As viewers were beginning to drift away from traditional cable and erode revenues, ESPN executives were busy doubling down on bloated sports contracts and expensive Sportscenter set redesigns. Only once ESPN lost 10 million viewers in just a few years did executives finally acknowledge that cord cutting was a problem, though they subsequently have tried to downplay the threat at every opportunity.

The question now is how to fix that problem. ESPN's first step was to try and save costs by firing oodles of on-air talent, but not the executives that failed to navigate this sea change. That has since been followed by ESPN-owner Disney recently proclaiming it would be offering two direct to consumer streaming platforms -- one stocked with Disney and Pixar fare, and the other being a direct to consumer ESPN product. During a recent earnings call, Disney CEO Bob Iger verbalized the company's slow epiphany in the face of cord cutting:

"We’ve got this unbelievably passionate base of Disney consumers worldwide that we’ve never had the opportunity to connect with directly other than through the parks,” Iger said. “It’s high time we got into the business to accomplish that.”

Iger acknowledged that the decision to act was spurred by the disruption in the traditional TV eco-system that has been rocking ESPN for the past few years. But Disney’s blue-chip brands give them a leg up in taking a radical new approach to reaching consumers.

“It’s not just a defensive movie, it’s an offensive move,” Iger said.

Granted it's not really playing offense when you only react after worries about cord cutting and ratings slides causes a $22 billion valuation hit in just a few days, something Disney experienced last year. Still, it's good to see Disney pull its head out of the sand and embrace the idea of giving consumers what they want, even if the move is painfully belated and under-cooked. The problem for ESPN specifically, as many have been quick to point out, is that the company is still stuck between a rock and a hard place in terms of navigating the transition to streaming -- even if it does everything right (which it won't).

There's plenty of reasons for that, the biggest being that streaming simply can't be as profitable as the long-standing practice of forcing cable TV customers on to bloated bundles filled with channels (like ESPN) that they may not want. ESPN currently makes $7.21 for each cable TV subscriber, many of which pay for ESPN begrudgingly. One survey found that 56% of ESPN viewers would ditch the channel if it meant saving that money off of their monthly bill. Fear of losing those customers was one of the reason ESPN sued Verizon when the company tried to take ESPN out of its core TV bundle.

And while ESPN may now be technically doing the right thing in finally offering a direct-to-consumer streaming product, such an offering will only aid to expedite viewer defections, while ESPN's sports licensing costs remain the same:

"A streaming service, while it might attract sports fans who have cut the cord, won’t solve ESPN’s profit problems. Instead it will exacerbate them. Why? Because ESPN will continue to lose the millions upon millions of cable subscribers who pay for it but never watch it. Losing $7.21 from each non-watcher is going to be a revenue killer. There is no possible way the universe of sports fans who want ESPN can make up that revenue, even if they’re charged more for a streaming service."

Traditionally, many cable and broadcast companies have tried to give the impression of adaptation by launching a streaming service, then saddling it with all manner of caveats to prevent existing, traditional cable TV customers from downgrading to the cheaper, more flexible streaming option. This really never works, but it looks like the path Iger and Disney are going to follow when it comes to ESPN's latest streaming venture:

"To make matters worse, Disney appears to be planning a streaming service that even the most rabid sports fan will be reluctant to pay for. All the good stuff — big-time college football, professional basketball, the Monday night National Football League game — will remain exclusively on ESPN’s cable channels. The streaming service will get, well, other things. It’s pretty clear that Iger is still trying to protect Disney’s legacy cable business, and that his move to the internet is not exactly a wholehearted embrace."

In other words, ESPN's epiphany and transition isn't quite as profound as many are suggesting, and ESPN still somehow believes it can control the rate of evolution; a fool's errand. Many industry insiders also have told me over the years that ESPN's contracts with many cable providers state that should ESPN offer its own streaming services, cable providers will no longer be bound by restrictions forcing them to include ESPN in their core lineups, which will only accelerate the number of skinny bundle options without ESPN.

It's a damned if you do and damned if you don't scenario for ESPN, and even if ESPN does all the right things here and offers a truly compelling streaming platform customers really enjoy -- there's simply no getting around the fact that this transition is still going to really hurt.